IN THE CASE OF:
BOARD DATE: 19 July 2011
DOCKET NUMBER: AR20100030230
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that his rank and pay grade be restored to Specialist Four (E-4).
2. The applicant states he was in Vietnam for 1 year, 6 months, and 27 days. He extended for 6 months and 27 days. He has learned to keep his mouth shut. He did like the Army and is proud to have served his country.
3. The applicant provides no documentation to support his request.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 27 December 1966. He completed training as an infantryman and served in Vietnam from 2 June 1967 to 19 December 1968.
3. While in Vietnam he:
a. served as a rifleman with B Company, 2nd Battalion, 35th Infantry where he received nonjudicial punishment (NJP), under the provisions of Article 15 Uniform Code of Military Justice, for sleeping on his post on 9 July 1967;
b. was transferred to D Company on 9 July 1967 and served there until 19 November 1967;
c. served a door gunner with the 174th Aviation Company, where he;
(1) was advanced to pay grade E-4 on 29 January 1968;
(2) extended his tour of duty in April 1968;
(3) was reduced to pay grade E-3 due to NJP for insubordination of his First Sergeant; and
d. served as a security guard with the 14th Security Guard from 4 September 1968 until he left Vietnam.
4. The applicant returned to the United States, and he received another NJP on 13 February 1969 for being absent from his appointed place of duty.
5. On 26 June 1969, he was released from active duty with an honorable characterization of service and transferred to the Army Reserve in pay grade E-3. His awards included the National Defense Service Medal, Vietnam Service Medal with two bronze service stars, Republic of Vietnam Campaign Medal with Device (1960), Marksman Marksmanship Qualification Badge with Rifle Bar, Aircraft Crewmember Badge, and the Combat Infantryman Badge.
6. Table of Maximum Punishments of the Manual for Courts Martial, both as then and currently in effect, show that the authorized punishment for insubordination of a noncommissioned officer is confinement for 5 years.
Generally, the least stringent legal definition of a serious offense is confinement for at least 1 year.
DISCUSSION AND CONCLUSIONS:
1. The applicant received three NJPs during his brief military career. According to the Table of Maximum punishments the one that reduced him could have resulted in a court-martial and 5 years confinement.
2. His awards indicate he was a good Soldier; however; his conduct record indicates he bordered upon being a disciplinary problem.
3. There is insufficient justification to approve of his unsupported request to restore his rank and pay grade of Specialist Four (E-4).
4. In view of the foregoing there is no basis for granting the applicant's requested relief.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X___ ___X____ ____X___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
__________X______________
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20100030230
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ABCMR Record of Proceedings (cont) AR20100030230
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